R v Pemberton
[2002] VSCA 4
•6 February 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 69 of 2001
| THE QUEEN |
| v. |
| ANDREW JOHN PEMBERTON |
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JUDGES: | WINNEKE, P. and BUCHANAN and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 6 February 2002 | |
DATE OF JUDGMENT: | 6 February 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 4 | |
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Criminal law - sentencing - negligently causing serious injury constituted by driving a car into the rear of another vehicle on Hume Highway - sentence of 2 years with minimum of 18 months not "manifestly excessive" - no basis for contending that judge had failed to pay adequate regard to prospects of rehabilitation - application for leave to amend grounds of appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S.E. Pullen | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr C.N. Kilias | Caleandro Guastalegname & Co. |
WINNEKE, P.:
On 23 March 2001 the appellant pleaded guilty in the County Court at Melbourne to two counts of negligently causing serious injury contrary to s.24 of the Crimes Act 1958 and to one summary offence of being in possession of property reasonably suspected of being the proceeds of crime contrary to s.125 of the Confiscation Act 1997. The maximum penalty for the offences laid pursuant to s.24 of the Crimes Act was five years and two years was the maximum available under s.123 of the Confiscation Act. After a plea conducted on 28 March 2001, the learned judge, on 30 March, sentenced the appellant to 24 months' imprisonment on each of the counts of negligently causing serious injury and two months' imprisonment on the summary offence. The sentences imposed were to be served concurrently and a minimum period of 18 months was directed to be served before the appellant was to become eligible for parole. Pursuant to s.89 of the Sentencing Act the appellant's licence to drive a motor vehicle was cancelled and he was disqualified from obtaining any such licence for 36 months from the date of sentence.
The appellant sought and obtained leave to appeal against the sentences imposed from a single judge of this Court in May 2001. The grounds of appeal, amended by leave of the Registrar on 21 December 2001, are twofold:
1.The learned judge erred in totally rejecting consideration of the factor of rehabilitation.
2. The sentence was manifestly excessive.
By notice dated 5 February 2002 the appellant has applied to add a further ground of appeal, namely:
"3.That the learned judge erred in rejecting from his sentencing considerations the possibility of an intensive corrections order, such rejection being predicated upon his erroneous belief that such an order would preclude the appellant from gainful employment."
The Court permitted counsel to argue this ground but reserved for itself the question whether leave to amend the grounds should be given.
The circumstances which led to the commission of the offences can be stated in short compass. On Monday 27 March 2000 the appellant was driving a Mitsubishi Magna sedan in a southerly direction along the Hume Highway towards Melbourne at about 9.45 a.m. The morning was both warm and clear and the roadway was dry. The evidence accepted by the judge - and not seriously in contest - was that the appellant's vehicle, which had been travelling erratically and at speeds exceeding 140 kilometres per hour, ran into the rear of the vehicle travelling in front of it in the left-hand lane of the southbound carriageway of the highway at or near the Broadford turn-off. The force of the impact caused the vehicle struck, namely a Range Rover in which Mr and Mrs Noble were travelling, to veer across the carriageway at an increased speed; to strike the median strip; to somersault and then to roll. The appellant's vehicle continued to "skid forward" for some 90 metres before it came to a halt. Skid-marks in excess of 100 metres were measured by police as having been left by the appellant's car. Mr and Mrs Noble were seriously injured - Mrs Noble the more so. Witnesses who accumulated at the scene told police that the appellant's vehicle had been travelling "erratically" shortly before the impact and at speeds well in excess of the speed limit of 110 kilometres per hour and in the vicinity of 140 kilometres per hour. Although the right-hand lane of the southbound carriageway was vacant, no effort was made by the appellant's vehicle to veer to the right before running into the rear of the Nobles' vehicle. The appellant's explanation to the police in a record of interview taken after the accident sought to blame Mr Noble, who was the driver of the Range Rover, by claiming that he had suddenly reduced his speed immediately before impact. That explanation was patently false and not persisted in at the plea hearing.
No explanation was advanced by the appellant before the judge for this extraordinarily negligent piece of driving on one of Victoria's major arterial roads. The appellant - who had hired his roadworthy vehicle from Thrifty Rent-a-car on the preceding Friday - had driven a friend to Sydney on the Friday night, arriving in Sydney at about lunch time on Saturday. He told the police that he had visited friends in Sydney on the Saturday afternoon and had gone to bed a little after midnight on that evening. He had visited other friends in Sydney on Sunday before having a "take-away dinner" and commencing to drive back to Melbourne at about 7 to 8 p.m. on Sunday evening. He claimed to have had "breaks" and "meals" on the way back, stopping at the border at about 8 a.m. on the Monday for a coffee and something to eat. There was nothing about the weather, the road surface, the traffic or alcohol which explained this collision. The appellant denied having "dozed off". In the boot of the appellant's car police found a "Whacka" brand compactor, which the appellant claimed to have found adjoining the highway at Bookham in New South Wales. It was in the vicinity of roadworks being carried out near Bookham. The appellant claimed it was covered by hessian bags. The possession of the compactor was the subject of the summary offence charged under the Confiscation Act. Engravings upon it indicated that it belonged to Thiess Engineering, who were the contractors carrying out work on the Bookham Overpass. The appellant conceded that he "should not have taken it".
The appellant was aged 31 at the time of the collision. He was a truck driver by occupation and lived with his de facto wife and three children in Werribee, Victoria. He was the major breadwinner for the family and, as his Honour noted on the plea, the fact that he was bound to lose his licence for "at least two years" pursuant to s.89 of the Sentencing Act was going to cause substantial hardship to his family. His Honour noted that the appellant had admitted nine previous convictions from seven court appearances which mainly related to driving and similar offences. However, having regard to the fact that the appellant made his living from driving motor vehicles, his Honour did not regard these previous offences as relevant to his sentencing task. He said:
"I do not regard any of them as relevant to determining the appropriate sentence to be imposed upon you for these offences, by reason of the time at which they have been committed and the nature of them."
It is clear that his Honour was sentencing the appellant as a man of "otherwise good character".
In the course of his sentencing remarks, his Honour made it clear - correctly, in my view - that this was a serious case of negligently causing serious injury. He said in the course of his remarks:
" There is evidence of other persons who were driving or travelling in vehicles south bound on Hume Highway that morning, of observations of the speed and manner in which you drove shortly prior to and leading up to the point of collision. That evidence of the high speed and erratic manoeuvring of your vehicle before the collision, which I accept for the purposes of the plea, suggests that your involvement in the collision, with serious consequences, was not only predictable but inevitable. Of course you are not to be sentenced for the manner of your driving generally on that day, and I do not do so.
To run into the rear of another vehicle travelling in the same direction, on a divided highway, in daylight and good driving conditions is of itself highly suggestive of negligence. On your own admission in the record of interview with police conducted on the day of the collision, there was no other traffic in the next lane or in front of the Range Rover or behind your vehicle which could have impeded your vehicle's path or in any way caused or contributed to the collision.
His Honour further said:
" I am satisfied that at the time and place of the collision there was good visibility and fine weather, the road was dry, your vehicle was in roadworthy condition, the traffic was light and you did not have any alcohol in your blood. Thus each of these may be eliminated as possible causes of, or factors contributing to, the occurrence of the collision.
In my opinion, the collision must be attributed to your impaired concentration and failure to keep a proper lookout and the grossly excessive speed at which you were propelling your vehicle along the Hume Freeway. These factors made a certainty of the proposition that you would collide with another vehicle or run off the roadway.
For other innocent citizens on the highway your presence merely served the purpose of putting in danger their health and lives in a random manner. Unfortunately for Mr Noble and Mrs Noble, it was their vehicle with which yours collided. You must have understood the probable consequences of your actions."
His Honour was critical of the initial endeavours of the applicant to shift what was clearly his sole blame for the accident on to the hapless victims. He said:
"After the collision, during the first of your interviews with police on the day of the collision, you asserted that the Range Rover had suddenly slowed in front of your vehicle, an allegation which is unsubstantiated and inconsistent with the evidence. In my view it represents a dishonourable attempt by you to deflect blame for your disgracefully inept driving on to the victims of it."
In support of the grounds of appeal Mr Kilias (who appeared for the appellant in this Court) submitted that the judge had fallen into error in "casting aside" the prospects of the appellant's rehabilitation as a relevant sentencing consideration. In the course of enumerating what he thought to be the operative factors which would influence his discretion, his Honour said:
"3. Your rehabilitation. Rehabilitation does not appear to me to be a relevant sentencing consideration in the circumstances of this offence."
His Honour had no access to the amended grounds of appeal and accordingly has not reported on those amended grounds to this Court pursuant to the rules. It is perhaps a pity that he had no opportunity to report to the Court on this aspect of the grounds of appeal. Although counsel has made much of the statement that his Honour made and to which I have referred in addressing argument to this Court, it seems to me that, when read in context, this experienced judge was not saying that rehabilitation should play no part in the fixing of an appropriate sentence; but was only saying that, because the "otherwise good character" of the appellant was established and the offences were "one-off", there was no need to establish conditions to facilitate the appellant's rehabilitation. No doubt his Honour's words could have been better chosen, but it is apparent from the framework of his careful sentencing exercise that, at this point in his remarks, he was intending to describe (in terms of s.5(1) of the Sentencing Act) the sentencing considerations which he perceived to be appropriate, but contentious. Counsel who appeared for the appellant on the plea had not put anything to his Honour suggesting that particular attention be given to his client's rehabilitation or reformation, because that was never an issue, in the sense that there were particular proclivities from which he needed to be reformed. In the case of McGrath[1], Crockett, J. - who delivered the judgment of the Court - said, in response to a similar argument that the judge was in error in failing to give proper weight to prospects of rehabilitation:
"For instance it was said that he disregarded the question of the applicant's possible rehabilitation. This case was not, in my opinion, one for rehabilitation. The applicant had not shown a proclivity to follow a course of lawlessness from which he needed to be reformed. The offence in question was a relatively isolated one, and the question of the applicant's being likely in the future to offend again was not considered to be a real possibility."
This, in my view, was the sense in which his Honour in this case made the remarks which have been impugned. There is nothing to suggest he has made any operative error or has failed, in a general sense, to take the appellant's uncontested rehabilitative prospects into account. I would, accordingly, reject this ground of appeal.
[1]C.C.A., unreported, 12 April 1989.
Before considering ground 2, I will refer to ground 3, in respect of which leave to amend has been sought. As I have said, that ground asserts that the judge was in error in rejecting from his sentencing considerations the possibility of an intensive correction order because of his erroneous belief that such an order would preclude the appellant from engaging in gainful employment. Thus, so it is now contended, his Honour cannot have "worked his way" through the hierarchy of sentencing orders in accordance with s.7 of the Sentencing Act, nor complied with the provisions of s.5(4) of that Act.
There is, in my view, nothing in this point. Counsel for the appellant on the plea had asked his Honour to consider the prospects of an intensive correction order or a suspended sentence. This request had been made immediately after the evidence had been given by the appellant's de facto wife referring to the hardship which would be caused to the family if the appellant was to be imprisoned. In suggesting that such hardship would not be alleviated by an intensive correction order, his Honour said:
"But an intensive correction order would preclude him, would it not, from engaging in gainful employment during the term of the order" -
to which counsel for the appellant on the plea responded:
"Yes, I think Your Honour is right."
Counsel went on to say that an intensive correction order would nevertheless allow the appellant to remain on a daily basis with the family, a matter which his Honour said he "understood". He further noted that "hardship to the family" was, except in exceptional circumstances, not a factor which should influence his sentencing discretion; and went on to say, because he was bound to cancel the appellant's licence for at least two years, the financial hardship to which the wife had referred was in any event bound to occur.
I can see nothing in these exchanges which suggests to me that his Honour has erroneously failed to consider the intensive correction order which counsel suggested. All that it suggests to me is that, even if believed to be appropriate, it would do nothing to alleviate the type of hardship which would flow from the loss of employment in which the appellant had been previously engaged. Counsel on the plea agreed that this was correct. It is, in any event, clear that his Honour would not have regarded an intensive correction order as appropriate because, to do so, he would have had to conclude that the offences did not merit a sentence of imprisonment of more than one year. Clearly his Honour was not of this view. I would, accordingly, not uphold this ground, and there is therefore no point in granting the leave sought to amend by including it in the grounds. I would therefore refuse such leave.
That leaves ground 2, namely, that the sentences imposed are manifestly excessive. That is a ground which requires the Court to conclude that, on the face of the sentences, those imposed can be seen to be so high as to manifestly make it appear that the sentencing discretion has miscarried. In the event, counsel did not contend that the head sentences imposed were manifestly excessive or that the total effective head sentence was manifestly excessive. His contention was that the non-parole period of 18 months was manifestly excessive. It was said that such a period was the highest which the judge could lawfully fix under s.11 of the Sentencing Act because that section provides that the non-parole period must be "at least" six months less than the head sentence. Before a Court can say that a sentence is manifestly excessive it must, as I have said, be satisfied that it immediately strikes the Court as being "outside the range" available to the judge. Mr Kilias put it that the fact of the appellant's good record and his prospects of rehabilitation required the judge to set a non-parole period lower than that which he did. I cannot agree. The seriousness of the offences warranted a non-parole period of the type which his Honour imposed, particularly having regard to the importance of general deterrence in offences of this kind. I am certainly not persuaded that the non-parole period which his Honour fixed was beyond the range available to him. I would accordingly reject ground 2, and with it the appeal.
BUCHANAN, J.A.: I agree.
VINCENT, J.A.: I agree.
WINNEKE, P.: The formal order of the Court is that the appeal against sentence is dismissed.
I would formally note that the application for leave to amend the grounds of appeal is refused.
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